Gun Control & RKBA
In reply to the discussion: What America's gun fanatics won't tell you [View all]jimmy the one
(2,745 posts)ffr is correct; and the 2nd amendment has been corrupted by the 2008 heller decision, subverted from its original meaning & intent. The heller decision was 5-4, politically based. The previous ruling on the 2nd amendment was in 1939, where a unanimous 8-0 verdict (one recusal) rendered a militia based interpretation:
(a previous post of mine): .. 1939 Miller supreme court case, which clearly noted 2ndA was militia based, and a followup dept of justice (DOJ) brief to the very 1939 court, declaring the DOJ's opinion of 2ndA as a militia based rkba:
1939 Miller scotus case: The Constitution, as originally adopted, granted to the Congress power --To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
https://www.law.cornell.edu/supremecourt/text/307/174
doj brief, 1938: In the only other case in which the provisions of the National Firearm Act have been assailed as being in violation of the 2nd Amendment (US v. Adams {1935}, the contention was summarily rejected as follows: The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It {2ndA} refers to the militia, a protective force of government; to the collective body and not individual rights.
Scalia also perverted justice joseph story into an individual rights proponent, when story was a strong adherent to the militia based rkba. Read here how story felt that without organization (obviously the militia) it would be impracticable to keep the people duly armed, a pretty good refutation of the individual rkba theory, since, by scalia, being duly armed had nowt to do with militia:
jos story early 1800's: And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations.
How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
http://presspubs.uchicago.edu/founders/documents/amendIIs10.html
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=189495
Which clause justice story is referring to, isn't totally clear, but doesn't matter that much, the paragraph refutes the i-rkba.
So far, there have been 12 (8 miller, 4 heller) scotus justices for the militia, 5 for the individual. Militia wins, 12 - 5.
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